The formula for Coca-Cola. The recipe for Kentucky Fried Chicken. The list of people buying tickets for Connecticut Huskies football games.
The first two are legally protected trade secrets — and third one will be, too, if the University of Connecticut gets its way.
Connecticut’s Supreme Court is scheduled to hear oral arguments in December in a case testing whether public colleges may refuse to honor open-records requests for the identities of those buying tickets to sporting events.
Ordinarily, any document in the possession of a public university must be disclosed on request, unless the university can point to a specific exemption that makes the document confidential. When a former state representative, Jonathan Pelto, asked UConn in April 2008 for a list of those holding season tickets to Huskies athletics, the university came back with a denial and a novel justification — the list is a “trade secret,” and trade secrets are a recognized exemption to the Connecticut Freedom of Information Act.
Pelto prevailed in his first round of appeals, to the Connecticut Freedom of Information Commission, a state administrative agency. But in April 2010, a trial-court judge disagreed with the Commission and ruled that UConn is entitled to safeguard its “customer” lists as a trade secret. The judge analyzed the meaning of a “trade secret” under Connecticut law — among the prerequisites, the information must have value to potential competitors, must not be widely publicly available, and must require some expenditure of time and effort to create — and decided that the ticketholder lists satisfied that definition.
UConn argues that the operators of casinos, theaters and pro sports franchises might exploit the ticketholder lists to promote their own services if the lists became public knowledge, thus letting those competitors freeload on the university’s marketing efforts.
In a brief filed with the state Supreme Court, the Connecticut Attorney General’s office argued, “In this case, the FOIC’s decision was unreasonable, arbitrary, illegal and an abuse of its discretion because it ignored the unrebutted testimony of University administrators that the customer lists requested by Mr. Pelto possess significant economic value to the University and that the University has protected the lists from disclosure.”
According to the Connecticut Law Tribune, the legal counsel for the FOI Commission — which is defending its interpretation before the Supreme Court — is arguing that state universities cannot have “customers” (as that term is understood in FOI law) because that term is meant to refer to those patronizing a commercial entity, not a government agency.
The state Supreme Court is scheduled to hear arguments in Pelto’s case Dec. 5, with a decision anticipated sometime in 2012.
The insistence that university “customer” lists are confidential is rather hilariously ironic given many universities’ own well-established practice of commercially exploiting their student, employee and alumni lists for commercial gain — including sharing those lists with outside commercial entities.
Connecticut isn’t the first to tackle the FOI status of university ticket patrons’ identities. In a 2008 case, Faulkner v. Rutgers University, New Jersey’s Government Records Council — which is notorious for ruling on the side of secrecy — decided that a requester was not entitled to a public university’s list of season ticket holders for football and basketball. Rather than rely on a trade-secrets rationale, the council determined that release of the information would unnecessarily invade the individual buyers’ privacy.
As recent college athletics scandals are illuminating, football tickets can be valuable currency. If the lists of ticketholders become categorically exempt from disclosure, it will become that much harder for journalists and other watchdogs to track whether athletes are violating NCAA rules by trading on their complementary tickets for profit.
Further, there may be any number of other reasons why journalists need access to the “customer lists” of public universities — for example, if there is suspicion that a university is steering its purchases to vendors that spend big bucks buying luxury stadium boxes, that lobbyists are buying up blocks of prime tickets as giveaways to politicians, or that VIP’s are getting special preference ahead of the public in purchasing the best seats.
Worse, once universities get the idea that the information they gather can be withheld from disclosure if it has commercial value, all sorts of formerly public data might suddenly be sucked into the black hole of “trade secrets.” For instance, wouldn’t health insurance companies have an interest in marketing their wares to university employees, in “competition” with the university’s own health plan? Or how about the proprietors of off-campus parking garages, dining services, and other businesses that arguably “compete” with universities? Would that make the university employee directory a trade secret? The peril of an adverse ruling in UConn’s case seems obvious — and it should be to the Connecticut justices as well.